(dissenting).
This is a statutory action in ejectment brought under the provisions of sections 301 and 303 of the Alaska Code of Civil Procedure (Act of June 6, 1900, c. 786, 31 Stat. 383; Carter’s Ann.Code Civ.Proc.Alaska, pp. 210, 211), providing:
“Sec. 301. Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action. Such action shall be commenced against the person in the actual possession of the property at the time, or, if the property be not in the actual possession of any one, then against the person acting as the owner thereof.”
“Sec. 303. The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years, and for whose life, or the duration of such term, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him to his damage in such sum as may be therein claimed. The property shall be described with such certainty as to enable the possession thereof to be delivered if a recovery be'had.”
*821These two sections limiting actions of ejectment under the Alaska Code to legal titles and rights of possession were adopted from the Oregon Code of Civil Procedure passed in 1862. General Laws of Oregon, 1843 — 1872, pp. 175, 176; Lord’s Oregon Laws, vol. 1, pp. 301 — 304. At the time of their adoption they had been construed by the Supreme Court of Oregon, and the presumption is that they were adopted in the light of that construction. In Thompson v. Wolf, 6 Or. 308-311 (decided in December term, 1877), the Supreme Court of Oregon held that—
In an action of ejectment “it is necessary that the plaintiff set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years (Civ.Code, § 315), thereby enabling the courts to settle the question of title, which is the great end of the action of ejectment with us.”
In a more recent decision, the same court holds that the action of ejectment under the Oregon Code involves the right of property as well as the right of possession.
In Chance v. Carter, 81 Or. 229-237, 158 P. 947-950, the Supreme Court of Oregon said: “The action of ejectment involves. both the right of possession and the right of property. The right of possession depends upon a right of property, because the right of possession must be traced to some estate in the property; and there can be no right of possession unless it is referable to and is founded upon an estate in the property.”
The Code provisions and the construction placed upon them by the Supreme Court of Oregon are in accordance with the law of the federal jurisdiction as declared by the Supreme Court of the United States.
In Burgess v. Gray, 16 How. 48-64 (14 L.Ed. 839), Chief Justice Taney, speaking for the court, said: “And the mere possession of.public land, without title, will not enable the party to maintain a suit against any one who enters on it.”
See, also, Oaksmith’s Lessee v. Johnson, 92 U.S. 343-347, 23 L.Ed. 682.
It is now the settled law that upon the acquisition of territory the United States acquires title to the tidelands equally with the title to the uplands, but with respect to the former the government holds it only in trust for the *822future states that may be erected out of such territory. Knight v. United States Land Association, 142 U.S. 161-183, 12 S.Ct. 258, 35 L.Ed. 974; Shively v. Bowlby, 152 U.S. 1-57, 14 S.Ct. 548, 38 L.Ed. 331. But while such territory remains in a territorial condition, the entire dominion and sovereignty, national and municipal, rests with the United States, and over it Congress has complete legislative authority arid may grant, for appropriate purposes, titles or rights in the soil below high-water mark of tide waters. Shively v. Bowlby, supra, 152 U.S. 58, 14 S.Ct. 548, 38 L.Ed. 331; Alaska Pac. Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138, decided Dec. 9, 1918.
Under this authority Congress, in the act of May 17, 1884 (23 Stat. 24), establishing a civil government for Alaska, provided in section 8 (see 48 U.S.C.A. § 356 note) as follows: “That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them, but the terms under which such persons may acquire title to such land is reserved for future legislation by Congress.”
In the Act of March 3, 1891, entitled “An act to repeal timber-culture laws, and for other purposes” (26 Stat. 1095), after making provisions concerning the entry of town sites in Alaska and for the possession and occupation of public lands in that district for the purpose of trades or . manufactures, it was provided in section 12: “That in case more than one person, association or corporation shall claim ,the same tract of land, the person, association or corporation having the prior claim by reason of possession and continued occupation shall be entitled to purchase the same.”
In Carroll v. Price (D.C.) 81 F. 137, these statutes were held to be a recognition by Congress that a prior possession of land in Alaska was a right of possession and that an action, for ejectment would lie to determine such right of prior possession; that this right of possession applied to tidelands as well as uplands, subject, however, to the public right of navigation; and that such right of possession would be determined by the same rules of law as govern similar rights on the uplands. The action in ejectment was accordingly sustained in that case.
*823In Heckman v. Sutter, 119 F. 83, 55 C.C.A. 635, this court had before it a controversy as to the right of possession of a certain tidelands fiat used for fishing purposes on Tongass Narrows in Alaska. The plaintiffs derived their right of possession from an Indian who was in possession of the land at the time of the' passage of the Act of May 17, 1884. The defendant in 1900 undertook to operate the same ground for fishing purposes to the exclusion of the plaintiffs. The plaintiffs brought suit against the defendant to restrain such interference, and the District Court in Alaska, upon the showing that the plaintiffs’ grantor was in possession of the tide flat on May 17, 1884, granted the injunction. This court in sustaining that decree said: “The prohibition contained in the act of 1884 against the disturbance of the use or possession of any Indian or other person of any land in Alaska claimed by them is sufficiently general and comprehensive to include tidelands as well as lands above high-water mark. * * * Congress saw-proper to protect by its act of 1884 the possession and use by these Indians and other persons of any and all lands in Alaska against intrusion by third persons, and so far has never deemed it wise to otherwise provide. That legislation was sufficient authority, in our opinion, for the decree of the court below in securing the complainants in the use and possession of land which the evidence shows and the court found was held and maintained at the time of their disturbance therein by the defendants, and for years theretofore had been so held and maintained.”
It will be observed that the right of possession claimed by the plaintiffs was determined by this court to have been secured to them by the express terms of the act of Congress of 1884, and not under a mere recognition of a general right of an American citizen to go upon public lands and occupy and use the same with the view of ultimately obtaining title thereto from the general government when the same should be open to purchase.
The plaintiffs in the present case did not derive their alleged right of possession from any one who was in possession of either the uplands, the tidelands in that locality or the tideland in dispute, at the time of the passage of the act of Congress of 1884.
*824I call attention to this distinction now for the reason that we are dealing in this case with a suit in ejectment under a statute, and what we are required to determine is whether the plaintiffs had such right of possession of the premises prior to the entry of the defendants as will entitle the plaintiffs to maintain this action. We are not concerned with plaintiffs’ prior possession of the land in controversy, except in so far as it may furnish a right of action in ejectment under the statute of Alaska.
In Malony v. Adsit, 175 U.S. 281-289, 20 S.Ct. 115, 44 L.Ed. 163, the action was ejectment, and the plaintiff had alleged in his complaint, and the court had found as a fact, that for more than nine years prior to April 9, 1891, he and his grantors were the owners by right of prior occupancy and actual possession of the land in dispute. This finding by the court placed the plaintiffs’ occupancy and possession of the land in dispute at and prior to the Act of May 17, 1884. The Supreme Court, referring to the condition of things in Alaska under this act and the Act of March 3, 1891, said: “The only titles that could be held were those arising by reason of possession and continued possession, which might ultimately ripen into a fee-simple title under letters patent issued to such prior claimant when Congress might so provide by extending the general land laws or otherwise.”
The action of ejectment in that case was sustained, the court citing with approval the decision of the District Court of Alaska in Carroll v. Price, supra.
In McCloskey v. Pacific Coast Co., 160 F. 794, 87 C.C.A. 568, 22 L.R.A.(N.S.) 673, the Pacific Coast Company brought suit to enjoin McCloskey from erecting a structure on tidelands in front of property claimed by the plaintiff, alleging that as a littoral owner of lands abutting on the water of the sea it was entitled to free access to and from the navigable waters fronting thereon. The District Court awarded the injunction on the ground that the plaintiff was the littoral owner of the upland in front of which was the tideland in controversy. This court did not find that the plaintiff was in fact the littoral owner and possessed, of an individual right as distinguished from the public right of access to the navigable waters in front of its land, but did find that the plaintiff’s grantors claimed the *825possession and the right of possession of all the tidelands. in front of its property at the time of the passage of the Act of May 17, 1884, and had maintained that claim ever, since, except in so far as it had conceded to public use a certain street and sidewalk therein described, and, as under that act the plaintiff was entitled to have its possession of the tidelands in controversy protected, it was entitled to secure that protection by any appropriate suit or action. The injunction was accordingly sustained. This case has a bearing on the present controversy as the plaintiffs in this case appear to make some claim upon the ground that they have been in possession of the uplands in front of which is the tideland in dispute. The claim cannot be maintained.
In Columbia Canning Co. v. Hampton, 161 F. 60, 88 C.C.A. 224, the action was brought by Hampton to restrain the Columbia Canning Company from interfering with or obstructing the plaintiff in the use of a structure which he had commenced to erect for a fish trap on the shore in front of and abutting upon a tract of land entered by the plaintiff on the 19th of April, 1905, under what is known as “Soldier’s Additional Homestead Scrip Act” (43 U.S.C.A. § 274). The court below issued an injunction. This court held that the plaintiff could not acquire a possessory right under his upland location to occupy the shore and maintain an action against' the defendant for interfering with or obstructing him in the use of such shore, nor had he, by his prior possession of the tideland, acquired a possessory right under the Act of May 17, 1884. The court repeated what had been said in previous decisions that the Act of May 17, 1884, did not provide for the protection of the possession of any land by any person or persons who might acquire possession or make claim thereto after that date. The decree of the District Court was accordingly reversed.
In Russian-American Co. v. United States, 199 U.S. 570-576, 26 S.Ct. 157, 50 L.Ed. 314, the Supreme Court held that section 8 of the Act of May 17, 1884, simply recognizes the right of such Indians or .other persons as were in possession of land at the time of the passage of that act. The party claiming the possessory right in that case did not take possession of the land until five years after the act of 1884 was passed. The court held that it was a mere trespasser upon the land which it claimed by pos*826sessory right. See, also, Decker v. Pacific Coast Co., 164 F. 974, 91 C.C.A. 102; Dalton v. Hazelet, 182 F. 561, 105 C.C.A. 99; Worthen Lumber Mills v. Alaska-Juneau Gold Min. Co., 229 F. 966-969, 144 C.C.A. 248; Pacific Coast Co. v. James, 234 F. 595, 148 C.C.A. 361; Sheldon v. Messerschmidt, 247 F. 104, 159 C.C.A. 322; Whelpley v. Grosvold, 249 F. 812-815, 162 C.C.A. 46.
In addition to the Act of May 17, 1884, protecting the Indians and other persons in Alaska in their possession of any lands actually in their use or occupation at the time of the passage of that act, Congress in section 15 of the Act of March 3, 1891 (26 Stat. 1101 [48 U.S.C.A. § 358] ), reserved the body of lands known as Annette Islands in Southeastern Alaska for the use of the Metlakahtlan Indians in prosecuting their fishing industries. This reservation included the adjacent waters and submerged land, as well as the upland. Alaska Pacific Fisheries v. United States, supra. By the Act of February 6, 1909, c. 78, 35 Stat. 598, the Cordova Bay Harbor Improvement & Town-Site Company was permitted to purchase not to exceed 2,-000 acres of nonmineral lands of the United States as' might be selected by said corporation and approved by the Secretary of the Interior, including tide or mud flats situated at the head of Cordova Bay. The tract selected was to have a frontage of not to exceed two miles on the wharf-age and dock area and was to be reserved and remain under the control of the United States, in trust however for the future state which may be created, including the same or any part thereof within its boundaries. This reservation of tidelands was plainly in the interest of navigation and fishery.
I find nowhere in the statutes any such reservation of the tidelands in front of the town of Petersburg for the special benefit of that community or of any of its citizens or for any one, from which fact I draw the conclusion that no possessory or other rights have been created or reserved in favor of any one in such lands, but'that they are free and open to the public for the uses and purposes of navigation and fishery.
I think that the occupancy of tidelands such as the plaintiffs had prior to their ouster by the defendants was not a right of possession in any legal sense. They had the right *827to use the place for the purpose of navigation and fishery, including the beaching, repairing, and mooring of floating property; but they had no right to exclude others from using the shore at that place for similar purposes. The possession which they had was therefore insufficient to support an action in ejectment, and the court should have so held in response to any one of several objections and motions made by the defendants.